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Lev, Tax Advisor
Category: Tax
Satisfied Customers: 29558
Experience:  Taxes, Immigration, Labor Relations
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Where to report fix and flip sale and expenses?

Resolved Question:

My husband and I purchased a rundown foreclosure property in 2006, fixed it up, and sold it in 2007. When we originally started this venture, we thought if we did well, we may try to do one property a year but because of the loss we will probably not try again for a few years. We held the property for 10 months. We did some of the labor ourselves and also hired some contractors. We lost money on the venture and now that I’m trying to complete our 2007 tax return, I need to know how I should report the sale and related expenses.

Do I report the sale on Form 4797, Schedule D or some other form? Do I capitalize the carrying costs (i.e. interest, taxes, and utilities) and treat them as an increase in basis or expense them somewhere else on the return? If I need to expense them somewhere else, where?

Are there any authoritative documents that I could look up to clarify the tax treatment? (i.e. code, regulations, publications, cases, tax articles, etc.)

Submitted: 8 years ago.
Category: Tax
Expert:  Lev replied 8 years ago.

There are two general approaches available to report your activities:

If you purchase a property as investment - the sale transaction is reported on the schedule D - short term (held less than a year). Some expenses - such as real estate taxes, mortgage interest - you would report on the schedule A; Any improvement expenses, utilities, etc. would be added to the basis. As you did not use the property for business or rental - there is no depreciation and you do not need to use the form 4797. As you would have capital losses - they would offset any other capital gain you might have - if your net capital losses are above $3000 - only $3000 nay be deducted in the current year (2007) and the rest should be carried over to the next year. Please see Publication 550 (2007), Investment Income and Expenses

If you are in the business for fixing properties - the property you had is considered as inventory and all income and expenses should be reported on the schedule C. As you have losses - there will not be any self-employment taxes. There is no limit for deducting business losses, but if you report business losses in two out of three years - that may trigger the IRS audit. Please see Publication 334 (2007), Tax Guide for Small Business

Let me know if you need any specific forms or instructions.

Lev and other Tax Specialists are ready to help you
Customer: replied 8 years ago.

Is the interest expense investment interest on Schedule A or could I take it as regular mortgage interest?

Expert:  Lev replied 8 years ago.

You may treat mortgage interest either way - if that is a second home and you are not deducting mortgage interest for more than two homes you may deduct the same way as you are deducting your home mortgage interest.

The way you deduct will likely not affect your tax liability.

Customer: replied 8 years ago.

Would there be any repercussion for future years if we take a Schedule C loss and then try to treat a similar transaction as investment property if we were to make a gain in the future - say three or four years from now?

Expert:  Lev replied 8 years ago.

You are absolutely correct - that is not something new or that the IRS not aware of: if the taxpayer has losses it is preferable to treat them as business losses, but if there is a gain - it is more beneficial to have capital gains.

You also correct that the IRS is looking closely for such "tricks" and treating similar transactions differently may trigger the red flag. Will or will not that affect you - hard to predict. The larger time interval - the less possibility - but I would never rule it out.

There is a three year statute of limitations for the IRS to assess additional taxes - assuming you filed your tax return and did not commit the fraud - it is unlikely that the IRS will audit tax returns for which the statute of limitation has run out.

Customer: replied 8 years ago.

I will treat the transaction as an investment property because that would be how I would have wanted to treat it had we made money. The advice you have given in regard to the interest and utilities is much more advantageous than the advice I received from the IRS agent I spoke with over the phone. He stated that we need to report the loss on the sale on Schedule D, which I expected if we are treating as an investment but he said the interest should be treated as investment interest (limited to investment income) and the taxes, utilities and insurance should be treated as investment expenses subject to the 2% of AGI on the schedule A. Obviously this treatment would be most advantageous to the IRS. Could you refer me to any reference material that would justify taking the interest/taxes as mortgage interest/real estate taxes on Schedule A and treating the utilities/insurance as costs of the sale/basis that I could refer to in the event of an audit? I've never been audited and have never really questioned the way the IRS recommends but if I can justify it, I would like to use your more aggressive approach.

Expert:  Lev replied 8 years ago.

Please be aware that you are not absolutely free to decide how to treat your activity. If for instance, you would sell three properties during the year and make substantial gain that overpass all your other income - the IRS would treat your activity as a business regardless your past history.

You likely misunderstood the IRS agent. Real estate taxes are deducted as taxes on the schedule A and not as investment expenses.

If you treat the property as a second home (personal property) - you may deduct the mortgage the same way as a mortgage, but for investment property - that would be investment interest. Please consider this definition of the investment property - Property held for investment includes property that produces interest, dividends, annuities, or royalties not derived in the ordinary course of a trade or business. It also includes property that produces gain or loss (not derived in the ordinary course of a trade or business) from the sale or trade of property producing these types of income or held for investment (other than an interest in a passive activity). Investment property also includes an interest in a trade or business activity in which you did not materially participate (other than a passive activity). - While it sounds a little broad and allows multiple interpretations - we need to relay on it.

Investment interest is not limited by the mortgage; the advantage of investment interest treatment is that you may also include - for instance - a credit card interest that you incurred when purchased some materials for the investment property. Etc.

Generally - and that is correct - your deduction for investment interest expense is limited to the amount of your net investment income.
You can carry over the amount of investment interest that you could not deduct because of this limit to the next tax year. The interest carried over is treated as investment interest paid or accrued in that next year.

However - in the year you dispose of the obligation, or if you choose, in another year in which you have net interest income from the obligation, you can deduct the amount of any interest expense you were not allowed to deduct for an earlier year because of the limit. Thus - you may deduct the interest expenses in the year you sell the property.

Your investment expenses (other than interest expenses) must be ordinary and necessary expenses paid or incurred:

-- To produce or collect income, or
-- To manage property held for producing income.
The expenses must be directly related to the income or income-producing property, and the income must be taxable to you.

Expenses you had in connection to your activity do not meet the definition above - they are related to a specific property, and not to investment activity in general (to produce or collect income); and that is not income a producing property. So generally speaking - these are not deductible investment expenses. Moreover, expenses are related to a specific property - so such expenses are not deductible and should be added to the basis.

As you are in the gray area - and some items may have multiple interpretations - please provide all the information above to your tax preparer.

Customer: replied 8 years ago.

With three young children, two working parents and all that comes with, we are lucky we made it through one flip. Not to mention the real estate market. It will definitely be a while before we would try again, if ever. The good news is that we learned a great deal, and no one can take that away, not even the IRS (which I'm no longer afraid of due to your expert advice).

You have been a great help. I truly appreciate your patience and taking the time to fully answer all my questions. Thank you.

Expert:  Lev replied 8 years ago.

You should not be scared of the IRS - yes it is large and very bureaucratic organization - but the IRS doesn't have any intention to take anything from you and we should not blame the IRS for failed business venture.

Even if you would be audited - the auditor will not treat you as an offender and that might be a good learning experience as well.

I'm glad that you are optimistic and looking forward to use whatever you learned. You may look for combination of real estate activities - such as rental and reselling - based on market condition and timing.